Gun Control, Judicial Restraint, and McDonald v. Chicago

This weekend brought two very different conservative responses to the oral arguments in the gun rights case McDonald v. Chicago. Writing at The Washington Post, George Will argues that not only should the Supreme Court extend the Second Amendment to the states, it should do so by reviving the Privileges or Immunities Clause of the 14th Amendment, which "was intended to be a scythe for slicing through thickets of state and local laws abridging fundamental liberties." Notice Will's use of the word thicket, a reference to Justice Felix Frankfurter's influential argument that the courts should practice judicial restraint by avoiding the "political thicket" and deferring to the judgment of legislative majorities.

Why should the words of a few congressional leaders more than 140 years ago—as seen through the diverse, distorting lenses of current Supreme Court majorities—trump the views of elected majorities today?

As Justice Stephen Breyer asked, why should equivocal evidence of what was intended in 1868 wipe out a handgun ban thought by Chicago's elected leaders to have saved hundreds of 21st-century lives?

That's one of the classic arguments for judicial restraint: If the law is a problem (the argument goes), overturn it at the ballot box, not at the courthouse. But of course the courts were designed as a check on the other branches, not as a rubber stamp for the will of the majority. Judicial restraint would not only nullify the judiciary's constitutional role, it would leave individual rights at the mercy of lawmakers.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

“As Justice Stephen Breyer asked, why should equivocal evidence of what was intended in 1868 wipe out a handgun ban thought by Chicago’s elected leaders to have saved hundreds of 21st-century lives?”

I think the fact that Chicago’s elected leaders are lying pieces of shit who have presided over some of the worst murder rates in America answers that question in some part.

Beyond that, would Taylor apply such a standard to any other law or right? Hey, why contradict the judgment of elected officials who have concluded that paying for counsel for criminal defendants is not worth the price?

As Justice Stephen Breyer asked, why should equivocal evidence of what was intended in 1868 wipe out nonexistent or cooked evidence of the saving ofa handgun ban thought by Chicago’s elected leaders to have saved hundreds of 21st-century lives?

I’m all for judicial restraint in matters political, but not when there is a clear-cut Constitutional mandate or prohibition. That makes the Constitution a dead letter even more quickly than the “living Constitution” agrument.

Why should the words of a few congressional leaders more than 140 years ago?as seen through the diverse, distorting lenses of current Supreme Court majorities?trump the views of elected majorities today?

Hmmm, let’s try that the other way with abortion.

Why should the words of few supreme court justices a 37 years ago trump the views of elected majorities today?

The only way to keep leftists from trashing the Constitution is turn things around on them. If elected majorities rule over Constitutional rights then clearly local jurisdictions have the right to overturn Roe v Wade and any number of other Leftist’s sacred cows implemented by the Judiciary.

Stuart Taylor is a fucking idiot. Here’s what he thinks the negative consequence of embracing the P&I clause would be:

Meanwhile, the notion of constitutional rights as immutable principles protecting our liberties from majoritarian tyranny morphs into rule by whichever faction happens to have a one-vote majority on the Supreme Court.

That’s what has already happened, douchebag.

Basically, he’s arguing that in order for our Constitutional rights to be immutable, we have to make sure the Court can’t protect them.

He’s concerned that armed with the P&I clause, justices will invent and dispose of rights at will, based on their ideological preferences.

That’s what we have now, douchebag.

At least with the P&I clause, plaintiffs will have one more weapon to deploy against abuses by the states. That’s the gain here. There is no downside.

If liberals want to use the P & I to legislate positive rights/entitlements from the bench, they will do so.

They don’t need a conservative majority to revive P & I first.

Although I do have to respect the potential for one of the Iron Laws to bite us in the ass here:

Me today, you tomorrow.

Just because the Constitution can be twisted to support the Total State is no reason to abandon it altogether. The supporters of the Total State will march on, undeterred, regardless of whether they have a compliant SCOTUS. The marginal effect is zero.

Taylor is concerned that liberals will use the P&I clause to create affirmative rights like housing and health care. But, I don’t see why they can’t do that already with due process.

They would have to use the P & I clause to mean something that it could not have meant in 1868.

If I were on the Court, I would interpret the P & I clause to protect only P & I’s that were generally recognized in 1868. If people think new p & i’s need constitutional protection, then they should amend the Constitution.

Here’s something I’ve never understood… Here’s the P&I clause: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”

How do you read positive rights into that? It just says the gov’t can’t mess with the rights the people already have. They are not prevented from creating positive rights, but the P&I clause does not require them to do so. It does, however, prevent them from denying you health care or whatnot.

If someone says “I have a right to health care”, if I were a judge, I’d say “the gov’t not providing you with free health care does not abridge your right to health care”. End of story. It has negative-rights-only protection built right in, to my reading. I’m sure someone here with a more lawyer-weasel mind can explain to me how that’s wrong?

I’m not automatically saying I’m agreeing with Will, but contra Scalia, I don’t think he’s taking this position because he’s angling for a job as a law professor, or that he’s trying to kiss up to liberals in the legal academy.

I love Scalia, but that particular statement of his is moronic. ‘The liberal team likes Privileges and Immunities, so my team has to be against it. You’re either with me, or you’re with the liberals.’

I love Scalia, but that particular statement of his is moronic. ‘The liberal team likes Privileges and Immunities, so my team has to be against it. You’re either with me, or you’re with the liberals.’

That’s not what he meant. You’re ignoring that Justice Scalia, out of all the justices, spent the most time as a law professor, both at the start of his career at UVa and then again later at U Chicago shortly before being nominated.

What he’s saying is “What is the practical point of resurrecting P or I?” Are we just talking about “everything we’ve done under Due Process, let’s say it’s justified under P or I instead, but all the rulings come down the same way?”

Personally, I’ve never gotten a satisfying explanation for that. I don’t think that bringing back P or I would make it any easier for liberal judges to invent positive rights, since they can and do already use Due Process for that. I frankly don’t see how it makes too much of a difference either way.

The question the courts should ask themselves is whether they’re making an ‘amendment by usurpation’ (to paraphrase President Washington), or whether they’re making an honest effort to apply the law.

An ‘amendment by usurpation’ can include allowing more power to the state than the Constitution contemplates, or giving powers to the federal government (including federal courts) which the Constitution reserves to the states or the people.

The idea of ‘judicial restraint’ as advocated by Frankfurter and others seems to be this: The courts can jump off a bridge as long as the other kids are doing it, too. Jumping in the same direction as other branches of government is ‘restrained,’ while trying to stop them jumping off the bridge is ‘activism,’ even if the Constitution clearly forbids jumping off a particular bridge.

It’s not at all clear that the original intent of the 14th Amendment was incorporation. Oddly enough, the Congress that passed it didn’t themselves agree on what it meant or how it should be interpreted. One view has it that the 14th was only trying to protect the Civil Rights Act of 1866, which was different than the Bill of Rights. Another has it that full incorporation was the effect. Truth is, no one really knows.

I understand arguing regarding intent when language is somewhat ambiguous (i.e. “well regulated militia), but the language here seems pretty clear. The amendment as written was passed and ratified as written, so it is now the law of the land.

JP, kudos for being the only one on the thread to actually know the heart of the issue, I might add that in addition to the 1866 CRA, their is some evidence the 14th might also have been intended to overturn the Barron’s case in which Marshall held the bill of rights as a restraint on the Fed gov, and did not apply to restrain the states as sovereigns. Personally, i feel that the courts current interpretation based on the slaughter house cases renders the 14th’s P&I clause surplusage, which, being an amendment and part of the Constitution, it cannot be. As Marshall said in Marbury v. Madison every part of the constitution must have effect and cannot be read to be mere surplusage.

Our form of government was established to be ruled by the majority, with the constitution detailing the exceptions that the majority cannot change. Those pesky exceptions. Stephen Breyer suggests the Supreme Court should depend on stastistics to make decisions,,,what a fool.

Mayor Daley of Chicago sites horror stories of people who were hurt by guns in his town, as a reason to ban guns, but fails to point out that this happened under his watch and his austere rules, witch failed to protect them. Perhaps some of them might not have been victims if they were not perceived as unarmed and helpless. The shooters might have thought better of it if and held there fire. Wolves attack sheep not bears.

Mayor Daley of Chicago sites horror stories of people who were hurt by guns in his town as a reason to ban guns, but fails to point out that this happened under his watch and his austere rules, witch failed to protect them. Perhaps some of them might not have been victims if they were not perceived as unarmed and helpless. The shooters might have thought better of it if and held there fire. Wolves attack sheep not bears.

Mayor Daley sites horror stories of people who were hurt by guns in his town as a reason to ban guns. He fails to point out that these happened under his watch and his austere rules, witch failed to protect them. Perhaps some of them might have been spared if they were not perceived as unarmed and helpless. The shooters might have thought better of it if and held there fire. Wolves attack sheep not bears.

Criminals are immune to gun laws. The primary problem with all gun laws is the very people they are aimed at are those least likely to follow them. The penalties for gun possession pal in comparison for people that already have records and have committed much greater affiances. Many gun confiscations from criminals are as a result of unlawful searches and not prosecutable. Thus the deterrent is small compared to the perceived utility.

Criminals must have guns to stay in business or run the risk of losing their ill-gotten gains to yet another criminal. Predators are prayed upon by stronger meaner predators. Remember they are not going to call 911. They need to intimidate or kill witnesses and victims. No criminal wants a confrontation on equal terms. They strike from a position of advantage. No one knows how many crimes have been deterred by the perception (real or imagined) that the intended victim can return aggression in kind. With out the advantage of being the only one armed they might even be forced to work for a living. What a terrible thing.

What to make of today’s ruling in McDonald v. Chicago? It can be construed as an act of judicial activism in line with that of the Warren and Burger courts’ extension of much of the rest of the Bill of Rights to defend individual rights against state infringement. Yet the remaining champions of the older rights-extending activist agenda stood against McDonald, while the supposed champions of “restraint” picked up the Warren banner of inventing new constitutional rights clearly not understood to exist at the time of textual adoption.http://destinationsoftwareinc.com